Pappu @ Jethanand Laxmichand Tolani vs C.D. Singh and Others

A.P. Shah, J.—By means of this writ petition under Article 226 of the Constitution of India, the petitioner seeks to challenge the order of detention dated 11th November, 1996 passed by the Principle Secretary to the Government of Maharashtra Home, Department (Preventive Detention) u/s 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA Act) with a view to preventing the detenu in future from smuggling goods.

Mr. Tripathi, learned Counsel appearing for the petitioner strenuously urged that the detenu had studied upto standard IXth in Sindhi medium. The detenu knows and is well versed with Sindhi language and understands Hindi language and script as well. Mr. Tripathi urged that Hindi translation of the detention order and the grounds of detention were served upon the detenu, but the Hindi translation of the documents are supplied much belatedly after about three months of serving the original documents in English. Mr. Tripathi urged that as a result of this lapse on the part of the detaining authority the detenu could not make effective representation. Thus his constitutional right guaranteed under Article 22(5) is violated. Mr. Tripathi urged that non-furnishing of the documents in the language known to the detenu amounts to non communication of grounds in the eye of law, violating both the facets of Article 22(5).

In reply Mr. Bagwe, learned Addl. Public Prosecutor attempted to show that the detenu knew English. In this connection, he referred to para 7 of the affidavit of M.M. Kamble, Deputy Secretary to the Government of Maharashtra, Home Department (Special), the exact words of which are as follows :

With reference to paragraph No. 6(B) and (H) of the petition, I say that the detenu, in his statement dated 6/1 /1996 recorded u/s 108 of the Customs Act, had clearly stated that he could write, read and speak Sindhi and Hindi languages and that he could also speak English language for ''business purposes''. I, therefore, deny that the detenu knows only the Sindhi language. I say that the contention raised in the two paragraphs under reply respectively, are at variance with each other. In paragraph No. 6(B), the detenu claims to know only the Sindhi language, whereas in paragraph No. 6(B) of the petition, the detenu claims to be ''well versed'' not only in Sindhi language, but also understands Hindi language and script. I say that on 10/3/1997 the Order of Detention, Grounds of Detention and relevant documents were served upon the detenu by the Executing Authority and the contents thereof, as and by way of abundant caution, explained to him in the Hindi language which was also known to him and in respect whereof the detenu had endorsed his acknowledgment. Furthermore, Hindi translation of the Order of Detention, Grounds of Detention and list of documents was also served upon him on 10/3/1997. I say that further Hindi translations of the documents were also served upon the detenu on 21 /5/1997. In the circumstances I say that the detenu has admitted that he knows Sindhi, Hindi and English languages. I deny that the detenu cannot understand English or Hindi language or could not avail the earliest opportunity to make an effective representation as alleged.

I deny that service of Hindi and English translations of the Order of Detention, Grounds thereof and the relevant documents amounts to non communication of Grounds of Detention as alleged. I respectfully submit that no prejudice had been caused to the detenu on account of non-supply of the documents in the Sindhi language inasmuch as the detenu admittedly, understands Hindi and English languages and furthermore the contents of all the documents served were also explained to the detenu in the Hindi language. I submit that the detenu was indeed, furnished with the documents in the language he understands. I deny that the detenu''s right to make a representation was affected or that there was non communication of grounds as alleged. I deny that both facets of Article 22(5) of the Constitution of India are violated or that the Order of Detention is illegal, bad in law or is liable to be quashed or set aside as alleged.

Mr. Bagwe argued that there is sufficient material on record to show that the petitioner had working knowledge of English and as such, there is no violation of Article 22(5).

Article 22(5) of the Constitution provides that when any person is detained in pursuance of an order made under any law providing for preventive detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order. It is settled law that the communication of the grounds which is required by the earlier part of the clause is for the purpose of enabling the detenu to make a representation, the right to which is guaranteed by the latter part of the Clause. A communication in this context, must, therefore, mean imparting to the detenu sufficient and effective knowledge of the facts and circumstances on which the order of detention is passed, that is, of the prejudicial acts which the authorities attribute to him. Such a communication would be there when it is made in a language understood by the detenu. See: Harikisan Vs. The State of Maharashtra and Others, . In Smt. Raziya Umar Bakshi Vs. Union of India and Others, Fazal Ali, J. held that the service of the grounds of detention on the detenu was a very precious constitutional right and where the grounds were couched in a language which was not known to the detenu, unless the contents of the grounds were fully explained and translated to the detenu, it would tantamount to not serving the grounds of detention to the detenu and would thus vitiate the detention ex facie. In Nainmal Partap Mal Shah Vs. Union of India (UOI) and Others, the detenu stated that he did not know the English language and, therefore, could not understand the grounds of detention, nor he was given a copy of the grounds duly translated in vernacular language.

In the counter affidavit the detaining authority suggested that as the detenu had signed a number of documents in English, it must be presumed that he was fully conversant with English. Rejecting the contention it was held by the Supreme Court that merely because the detenu may have signed some documents, it would not be presumed, in absence of cogent material that the detenu had working knowledge of English and under those circumstances there had been clear violation of the constitutional provisions of Article 22(5) so as to vitiate the order of detention.

Where it is stated that the detaining authority explained the grounds of detention to the detenu, court insists on adequate proof in the absence of any translation being furnished. Thus in Shri. Lallubhai Jogibhai Patel Vs. Union of India (UOI) and Others, the detenu did not know English but the grounds of detention were drawn up in English and the detaining authority in affidavit stated that the Police Inspector while serving the grounds of detention fully explained the grounds in Gujarati to the detenu. Admittedly, no translation of the grounds of detention into Gujarati was given to the detenu. It was held that there was no sufficient compliance with the mandate of Article 22(5) of the Constitution which required that the grounds of detention must be communicated to the detenu. Communication requires that sufficient knowledge of the basic facts constituting the grounds should be imparted effectively and fully to the detenu in writing in a language which he understands, so as to enable him to make a purposeful and effective representation. If the grounds are only verbally explained to the detenu and nothing in writing is left with him in a language which the detenu understands, that purpose is not served, and the constitutional mandate in Article 22(5) is infringed. Similar is the view expressed in Harikisan v. State of Maharashtra (supra).

In the instant case, the order of detention and the grounds of detention were served upon the detenu alongwith the Hindi translation thereof. But it is an admitted position that the translation of the documents annexed to the grounds of detention was not supplied to the detenu. It is averred in the affidavit of Mr. Ramble that the documents were translated to the detenu in Hindi at the time of service of the grounds of detention on the detenu. But surely this cannot be regarded as sufficient compliance with the mandatory requirement of Article 22(5) in view of the law laid down by Apex Court in the cases of Harikisan v. State of Maharashtra (supra) and Lallubhai Jogibhai Patel v. Union of India (supra). Mr. Bagwe strenuously urged that the statements of the detenu which were recorded by the authorities on 6th January, 1996 and 4th June, 1996 are sufficient to indicate that the detenu had working knowledge of English. Mr. Bagwe submitted that the detenu is merely feigning ignorance of English language. He placed strong reliance on the decisions of the Supreme Court in Prakash Chandra Mehta Vs. Commissioner and Secretary, Government of Kerala and Others, and Kubic Darusz Vs. Union of India (UOI) and Others, . We are unable to accept the submission of Mr. Bagwe. In the first place, it is seen from the statement of the detenu recorded by the Directorate of Customs that the detenu has studied only upto IXth standard in Sindhi medium from Sadhu Vaswani High School, Chembur. He can read, write and speak Sindhi and Hindi. The detenu has stated that he can also speak English for his business purpose. He has further stated that in his statement recorded on 4th June, 1996 that he can read little English but cannot write well and, therefore, he has requested the custom officer to write his statement as per his say. It is also seen from the record that the statements were thereafter explained to the detenu in Hindi by the concerned custom officer. In our opinion, this material is not sufficient to come to the conclusion that the detenu was so conversant with English as that his right cannot be said to be impaired by non supply of Hindi translation of the documents referred by the authorities. In the representation made to the authorities the detenu made specific grievance that the detaining authority has furnished to him the Hindi translation of only the order of detention and the grounds of detention whereas no translation of other documents has been furnished in the language understood by him. It is only after receiving this representation the authorities served the translation of the documents on the detenu i.e. nearly two-and-half months after service of the order of detention. In our opinion, the order of detention is clearly vitiated on account of violation of Article 22(5).

The Supreme Court decisions relied upon by Mr. Bagwe are of much assistance. In Prakash Chandra v. Commissioner & Secretary (supra) one Venilal D. Mehta, his daughter Pragna Mehta and son Bharat Mehta were detained under the provisions of the COFEPOSA Act by virtue of an order dated 19th June, 1984. Their detention was challenged in the Supreme Court under Article 32 of the Constitution. They were alleged of having in their possession 60 gold biscuits of foreign origin. After their arrest, the father and the daughter were taken to the office of the Central Excise & Customs, Cochin where statements were made on their behalf. The statements of the daughter as well as the father were written by the daughter. The father Venilal Mehta put his signature in English as "Balvant Shah" whereas the son and the daughter told the officers that the correct name of the father was Venilal Mehta. It was the case of the father in the petition that he does not understand, read or speak or write English but he can only sign his name in English. On 20 June, 1984 the father and the son were served with detention orders. The Hindi translation of the grounds of detention was served on the father on 30th June, 1984. On 27th May, 1984 the father made a representation in Gujarati to the detaining authority praying that he was unable to read, write either English or Hindi or Malayalam and the grounds of detention may be given to him duly translated in Gujarati. It was contended that the order and the grounds should have been communicated to the detenus in the language or languages they understood and Venilal Mehta understood nothing except Gujarati. He did not understand English or Hindi or Malayalam. It was submitted that assuming that Venilal Mehta knew Hindi, the translated copy of the English grounds was admittedly made available to him in Hindi language on 30th June, 1984 beyond a period of five days and for which neither any exceptional circumstances existed nor any reasons given. Following the judgment in Harikisan v. State of Maharashtra and considering the case of Venilal Mehta the Supreme Court observed that the facts revealed that the detenu Venilal was constantly accompanied and was in the company of his daughter as well as son -both of them knew English very well. The father signed the document in Gujarati which was written in English which is his mercy petition in which he completely accepted the guilt of the involvement in smuggling. That document dated 30th June, 1984 contained, inter alia, a statement "I myself am surprised to understand what prompted me to involve in such activity as dealing in imported gold". In these facts and circumstances, the Supreme Court observed:

There is no rules of law that common sense should be put in cold storage while considering constitutional provisions for safeguards against misuse of powers by authorities though these constitutional provisions should be strictly construed. Bearing this salutary principle in mind and having regard to the conduct of the detenu-Venilal Mehta specially in the mercy petition and other communications, the version of the detenu Venilal in feigning lack of any knowledge of English must be judged in the proper perspective. He was, however, in any event given by June 30, 1984 the Hindi translation of the grounds of which he claimed ignorance. The gist of the annexures which were given in Malayalam language had been stated in the grounds. That he does not know anything except Gujarati is merely the ipse dixit of Venilal Mehta and is not the last word and the Court is not denuded of its powers to examine the truth. He goes to the extent that he signed the mercy petition not knowing the contents, nor understanding the same merely because his wife sent it though he was sixty years old and he was in business and he was writing at a time when he was under arrest, his room had been searched, gold biscuits had been recovered from him. Court is not the place where one can sell all tales. The detaining authority came to the conclusion that he knew both Hindi and English. It has been stated so in the affidavit filed on behalf of the respondent. We are of the opinion that the detenu - Venilal Mehta was merely feigning ignorance of English.

In the second case relied upon by Mr. Bagwe i.e. Kubic Darusz v. Union of India the detenu was a Polish national. He complained of violation of Article 22(5) alleging that he had no knowledge of English. The Supreme Court found that when the detention order and the grounds of detention were served on the detenu, the detenu received them and acknowledged receipt thereof by putting his signature in English. He did not complain that the grounds of detention were not understood by him. On the other hand, in the very grounds of detention it was stated that in the course of interrogation he answered the questions in English including the question as to how he happened to learn English. The gist of his answers in this regard was also given in the grounds of detention. The statements contained number of informations peculiar to the detenu himself which could not have been communicated by him to the interrogators unless he knew the English language. It was also found the in several places he corrected the statements putting appropriate English words and signing the corrections. While the detention order was passed on 16th May, 1989, his representation was admittedly dated only in June, 13, 1989. The Court came to the conclusion that the detenu had working knowledge of English enabling him to understand the grounds would be enough for making a representation. The detenu could very well send his representation in the language known to him.

The facts of the case in hand are totally different. The detenu had clearly indicated in his statement that he had little knowledge of English. The statement was translated to him in Hindi by the officer who had recorded his statement. Again when the detention order was served on the detenu the Hindi translation of the detention order and the grounds of detention were duly supplied to the detenu clearly recognising thereby that the detenu does not have sufficient knowledge of English language. If the authority felt it necessary to supply the translation of the order of detention and the grounds, we fail to understand as to why the translation of documents was not supplied to the detenu. Under the circumstances, we are constrained to hold that the order of detention is vitiated on account of violation of Article 22(5).

In the result, petition succeeds. The order of detention dated 11th November, 1996 passed by the Respondent No. 1 is quashed and set aside. The detenu is directed to be released forthwith if not required in any other case.